Judy H. Contreras, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 5, 1999
01993635 (E.E.O.C. Nov. 5, 1999)

01993635

11-05-1999

Judy H. Contreras, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Judy H. Contreras v. United States Postal Service

01993635

November 5, 1999

Judy H. Contreras, )

Appellant, )

)

v. )

) Appeal No. 01993635

William J. Henderson, ) Agency No. 4E-870-0200-98

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On March 31, 1999 appellant filed an appeal with this Commission from

a final agency decision (FAD) concerning her complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. �2000e et seq.

EEOC Regulation 29 C.F.R. �1614.402(a) provides that appeals to the

Commission must be filed within thirty calendar days after an appellant

receives notice of the final agency decision. The appeal is deemed

timely if it is delivered in person or postmarked before the expiration

of the applicable filing period. See 29 C.F.R. �1614.604(b).

In the instant case, a Domestic Return Receipt shows that appellant

received the FAD on February 9, 1999. Therefore, appellant's appeal to

the Commission, postmarked March 31, 1999, was filed beyond the thirty

day time limitation. On appeal, appellant contends that her delayed

filing was due to her poor health and the recent death of her nephew.

The Commission has previously held that, in order to justify tolling

the applicable limitation period, a complainant's physical condition

must have rendered her so incapacitated as to make her unable to timely

file an appeal. See Dipko v. USPS, EEOC Request No. 05900043 (March 19,

1990); Johnson v. Department of Health & Human Services, EEOC Request

No. 05900873 (October 5, 1990). Appellant contends that she is under a

doctor's care for tension, anxiety and high blood pressure. However,

even in light of the documentation provided, the Commission does not

find that appellant was so incapacitated as to be unable to file her

appeal within the time limit. We find, therefore, that appellant has

failed to provide sufficient justification to invoke waiver or equitable

tolling of the time limitation.

Accordingly, the appeal is DISMISSED pursuant to 29 C.F.R. �1614.403

(c).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

19848, Washington, D.C. 20036. In the absence of a legible postmark,

the request to reconsider shall be deemed filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and any supporting documentation must be submitted with your

request for reconsideration. The Commission will consider requests

for reconsideration filed after the deadline only in very limited

circumstances. See 29 C.F.R. �1614.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that you have the right to file

a civil action in an appropriate United States District Court WITHIN

NINETY (90) CALENDAR DAYS from the date that you receive this decision.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. If you file a civil action, YOU MUST NAME AS THE DEFENDANT

IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT

HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.

Failure to do so may result in the dismissal of your case in court.

"Agency" or "department" means the national organization, and not the

local office, facility or department in which you work. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

11/05/1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations